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Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Amy Melican, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which denied her request for tuition reimbursement for the cost of her daughter's tuition at the Stephen Gaynor School (Gaynor), a private school in New York City for children with learning disabilities, for the 1998-99 school year. The appeal must be dismissed.

        The child was 11 years old and attending Gaynor at the time of the hearing. Gaynor has not been approved by the New York State Education Department to provide special education to children with disabilities. She reportedly began attending Montessori schools at the age of two (February 5, 1999 Transcript p. 85), and began receiving speech/language therapy at the age of three (Exhibit 1). She continued to attend Montessori schools until she was enrolled by her parents at Gaynor for the 1995-96 school year (February 5, 1999 Transcript p. 85).

        The child reportedly was initially referred to respondent's committee on special education (CSE) in 1997, at which time she was classified as learning disabled (Exhibit 1). The CSE reportedly recommended that she be placed in a modified instructional services-I (MIS-I) class for gifted students with the related service of speech/language therapy. However, the child remained at Gaynor for the fifth grade during the 1997-98 school year. On December 7, 1997, Gaynor personnel advised the child's parents that their daughter was exhibiting inappropriate behaviors and increasingly violent thoughts in her writing (Exhibit F). They suggested that she receive counseling, which she began receiving in March, 1998. In a January, 1998 status report from Gaynor, the child achieved ratings of excellent and very good in all areas (Exhibit 6). However, an undated mid-year comprehensive progress report from Gaynor for the 1997-98 school year listed the child's "Approximate Level" of functioning in reading, comprehension, spelling, writing, and mathematics as below the fifth grade level (Exhibit 7). The report did not indicate what tests were used to assess the child's functioning level, though there is a reference in the transcript to the Analytical Reading Inventory (February 5, 1999 Transcript page 63).

        The CSE began the child's annual review during the spring of 1998. A psychological evaluation was conducted on March 16, 1998 when the child was 10 years old (Exhibit 2). The district's psychologist described the child as a learning disabled, gifted youngster. She reported the results of a 1995 psychological evaluation during which the child was administered the WISC-III and achieved a verbal IQ score in the superior range, a performance IQ score in the high average range and a full scale IQ score in the superior range. For the current evaluation, the district psychologist administered projective testing and reported that the child's responses were unremarkable. However, she noted that some of the child's responses may have suggested an underlying sense of sadness.

        In an educational evaluation conducted on March 31, 1998 (Exhibit 3), the child achieved scores in the average range in broad reading, broad math, basic math and broad knowledge on the Woodcock Johnson Psycho-Educational Battery Tests of Achievement Form B (WJ). Her lowest score was in the low average range in dictation (3.2 grade equivalent). The educational evaluator noted that while the child observed rules of capitalization and punctuation, her syntax was not always appropriate, she made some spelling errors and she did not proofread carefully. She indicated that the child was cooperative, remained on task and worked conscientiously. The educational evaluator did not make any specific recommendations, and indicated that the program and or services would be dependent upon the results of all of the assessments.

        A social history based upon an interview with the child's father was obtained on May 21, 1998 (Exhibit 1). The child's father advised the district's social worker that his daughter was making progress at Gaynor, and that the she was reading and meeting the academic expectations there. He explained that his daughter required a special education environment because she demonstrated limited ability to focus, was easily distracted and frequently displayed word confusion in her reading and writing. The child's father also indicated that his daughter had recently displayed some aggressive behaviors in the classroom, particularly directed toward boys. In addition, he indicated that her teachers recommended that she receive counseling because she began expressing violent ideas in her written work. The child's father further indicated that his daughter had a history of self abuse when feeling extreme frustration, however, he had not noticed that behavior in the previous year. He also stated that his daughter's tendency to cry out in frustration had diminished over the past year. The child's father further advised the district's social worker that his daughter was very sensitive to noise and he believed that a public school placement would be too noisy.

        In a speech/language evaluation conducted on May 1, 1998 (Exhibit 4), a speech/language pathologist noted that the child remained cooperative and focused throughout the evaluation procedure and appeared eager to perform well. She indicated that the child achieved scores reflecting above average skills in both receptive and expressive language. The speech/language pathologist reported that the child demonstrated age appropriate skills in all areas of communicative development, and concluded that the child did not require speech/language therapy.

        In a May 6, 1998 classroom observation conducted while the child was in her science class at Gaynor (Exhibit 5), the district's psychologist reported that the child appeared to be attentive throughout the entire period. He further reported that she raised her hand in response to the teacher's questions, and was able to respond correctly. Additionally, she was able to read aloud from a worksheet without difficulty, except for the pronunciation of "geologist."

        The CSE met on June 24, 1998 to develop the child's sixth grade individual education program (IEP) for the 1998-99 school year. It recommended that the child continue to be classified as learning disabled (Exhibit 8). The child’s classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). It further recommended that she be placed in a Supplemental Instructional Services-I (SIS-I), or resource room class, five days per week, one period per day with a student to teacher ratio of 8:1. Various testing modifications also were recommended. In a letter dated August 7, 1998, the child's mother advised the CSE that she disagreed with the proposed placement and requested an impartial hearing (Exhibit 10). The child remained at Gaynor for the 1998-99 school year.

        The impartial hearing was held on February 5, 12 and March 5, 1999. The impartial hearing officer rendered her decision on April 15, 1999. She noted that the child demonstrated above-average to superior intellectual abilities and was performing at or near grade level in all subject areas. She further noted that the child exhibited an extremely mild language processing deficit which could appropriately be addressed in a resource room setting. Further, she found that there was no evidence in the record to support the parents' position that their daughter required a full-time special education setting to benefit educationally. The hearing officer found that the board satisfied its burden of showing that its recommended placement was appropriate. Accordingly, she denied petitioner's request for tuition reimbursement.

        Petitioner challenges the hearing officer's decision on a number of grounds. Initially, petitioner alleges that there is a significant discrepancy between her daughter's achievement and potential, and that the CSE disregarded her potential when making the proposed recommendation. Additionally, she alleges that the CSE disregarded her daughter's emotional issues when making the proposed recommendation. She asserts that the proposed class was inappropriate because her daughter would have been the only child in the class who was functioning in the above average range and she would have been the only girl in the class. She further alleges that she was not provided the rationale for the recommendation, that the CSE's final notice of recommendation did not sufficiently identify the particular class that was being proposed for the child, and that the proposed placement was not adequately explained to her.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        The child's IEP reflects the results of personality testing from the March 16, 1998 psychological evaluation, as well as the intelligence testing from a July 12, 1995 which indicated that the child was functioning in the superior range of intellectual ability. The child's IEP also reflects the results of the March 31, 1998 educational evaluation which showed average achievement in reading, mathematics and general knowledge. Further, the IEP reflects the results of the May 1, 1998 speech/language evaluation which found that the child demonstrated age appropriate skills in all areas. It provides that the child's academic needs require assistance in applying information, using organizational strategies and transferring and generalizing.

        Petitioner alleges that the child has additional needs including emotional and behavioral issues, attention issues, and a sensitivity to noise. I note that the child's private therapist testified that the child was easily overwhelmed and had difficulty regulating her emotional state. However, there is no evidence suggesting that emotional or behavioral factors impacted the child's academic performance. Similarly, while there are references in the record to an attention deficit disorder (ADD) and testing which concluded that the child had an auditory processing disorder, no medical report or audiological report was submitted to the CSE or made part of the record in this proceeding. Absent supporting documentation evidencing these conditions, I am unable to determine that the child had needs beyond those identified in the evaluations. It is incumbent upon a parent to provide relevant information to the CSE so that the child's needs can be fully identified and understood (Application of a Child with a Disability, Appeal No. 98-27). I find that the IEP accurately reflects the results of evaluations to identify the child's needs.

        Petitioner has not challenged the IEP annual goals and short-term instructional objectives. I have nevertheless reviewed them because it is important to establish that the goals and objectives are appropriate before determining what special education services are required to afford the child a reasonable chance of achieving them. As noted above, the IEP provides that the child required assistance in applying information and using organizational strategies. Additionally, the record shows that child achieved a low average score in dictation, she made some spelling errors, and she did not proofread carefully. The child's IEP includes goals to improve study, reading, writing and mathematical skills. Based upon the information before me, I find that the IEP established annual goals and short-term instructional objectives which were related to the child's identified educational deficits.

        To address the child's identified needs, the CSE recommended that the child receive resource room services five days per week for one period each day. Petitioner contends that part-time supplementary special education was inadequate to meet her child's special education needs. I disagree. As noted above, petitioner alludes to a number of conditions or deficits in her petition, but the record before me does not include evidence of those conditions, or the manner in which they have adversely affected the child's educational performance. Respondent is required to offer services to the child in the least restrictive environment. Before the CSE can recommend full-time primary special education instruction to the child, it must have a basis for concluding that part-time supplementary special education would not be appropriate. I find that it would have no basis for doing so on the present record.

        The teacher of the proposed class described the program as a "push-in" four times per week where she assisted the special education students in the regular education classroom in language arts and social studies, and a "pull-out" advisory period once per week where she provided remediation. She testified that she was only responsible for her special education students and that at times she instructed her students in the back of the classroom while the regular education teacher continued with the classroom lesson. She further testified that she assisted the regular education teacher to adapt the curriculum to the resource room needs and suggested modifications for the students to help them better understand the material. The resource room teacher stated that she used the Orton-Gillingham method for writing, reading and spelling whenever possible, and that she preferred the use of manipulatives for math instruction. Given the level of the child's functioning and the nature and extent of her disability, I find that the recommended program would have enabled the child to obtain an educational benefit.

        Petitioner argues that the proposed program was a combination of resource room services and consultant teacher services, and was never adequately explained to her. A resource room is defined in state regulation as a special education program for a student with a disability who is in need of specialized supplementary instruction in an individual or small group setting for a portion of the school day (8 NYCRR 200.1 [hh]). I find that the proposed program met the definition of a resource room, and that no additional explanation of the proposed program was required.

        Respondent is also required to demonstrate that it complied with the regulatory requirement to suitably group the child with other children for instructional purposes (8 NYCRR 200.6 [a][3]; 8 NYCRR 200.13 [a]. Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile. i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having an employee testify about the needs of the children. Respondent did both. The class profile shows that the students in the proposed resource room class were functioning between a 3.5 and 6.5 grade level in reading and math, their communication skills ranged from below average to age appropriate, and their learning characteristics were rated as average. The special education teacher testified that all of the children in the proposed class were of average intellectual ability (March 5, 1999 Transcript p. 8). Petitioner claims that her daughter would have been the only student with above average intellectual functioning in the group. However, it does not follow that she would have been inappropriately grouped with children of average cognitive ability. The record shows that the child's level of achievement was in the average range. Her standardized tests scores were at a 4.8 grade equivalent in reading and a 5.0 in math. I find that the child would have been appropriately grouped for purposes of instruction, and that respondent complied with the regulatory requirement. I note that the majority of the resource room services were provided in the regular education classroom where the child would have been among her non-disabled peers.

        The central dispute in this proceeding is whether petitioner is entitled to tuition reimbursement for the cost of her daughter's tuition at Gaynor. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). With respect to the first criterion for an award of tuition reimbursement, whether that services offered by the board of education were appropriate, I have found that respondent has demonstrated the appropriateness of the recommended program. Having found that respondent demonstrated the appropriateness of its recommended program, it is not necessary to address the remaining criteria for an award of tuition reimbursement. Accordingly, I find that petitioner is not entitled to reimbursement for her daughter's tuition at Gaynor for the 1998-99 school year.

        I have considered petitioner's other claims, which I find to be without merit.


Topical Index

Annual Goals
Educational PlacementResource Room
Educational PlacementSpecial Class8:1+1
IDEA EligibilityDisability Category/Classification
Parent Appeal
ReliefReimbursement (Tuition, Private Services)